In order to advocate faithfulness in litigation to fully protect the rights of the lawsuit for winning party, the court establish and strictly adheres to a attorney fee-shifting mechanism in the lawsuit. Following instructions on fee-shifting will help you understand the relevant content. Please read it carefully.
17.1. What is the Principle of Fee-shifting?
The fee-shifting principle refers to the mechanism by which the attorney expenses paid by the winning party shall be shifted to the losing party. With the further development of the rule of law, it is normal for the parties to entrust lawyers to assist in safeguarding their legitimate rights and interests. While fee-shifting principle is beneficial to reduce the losses of the winning parties, and promote the public to actively protect their legitimate rights and interests, it also has a disciplinary effect on the breach of contract by the defaulting party, which is more conducive to social fairness and justice.
17.2. Please Check whether you are in the Following Situations of Fee-shifting.
17.2.1. Malicious prosecution. If one party proposes a malicious lawsuit and the other party holds that the party concerned bear the cost of the lawyer, the court shall support it.
17.2.2.Obvious improper action of lawsuit. Where one of the parties has obvious misconduct on delaying to bear the burden of litigation in the following, and the other party claims for the misbehaving party to bear the increase of attorney fees, the court shall support the claim.
(1) Where the parties deliberately do not provide a valid delivery address, resulting in difficulties with service and a delay in litigation;
(2) Where the defendant intentionally fails to submit the pleadings in accordance with the law or by the deadline specified by the Court, or make a false or unsubstantiated reply, or the published reply comments on the trial are obviously inconsistent with the facts on the answer brief, resulting in a delayed litigation;
(3)Where the parties intentionally fail to quote evidence according to the provisions of the law or the time limit specified by the people's court, resulting in the delay in litigation;
(4) Where party raised an obviously unreasonable objection to jurisdiction, with reasons lacking factual and legal basis, resulting in a delay in litigation;
(5)The court shall arrange for the parties concerned to exchange evidence after the agreed time period for a reply or hold a pretrial meeting. Where the party concerned refuse to be present at the scene or the litigation representative present is not completely authorized to make decisions on the relevant issues and cannot give a definite answer to the problem that needs to be solved, resulting in delay in litigation;
(6) If in the pre-trial proceedings when the parties have fixed their claims, a new claim proposed by the plaintiff before the end of the court debate is countered by a counterclaim form the defendant or if the third party filed a claim relating to the case, resulting in a delay in litigation;
(7) Where the party makes an application for withdrawal, which causes the case to be postponed, and the reasons of the application is obviously due to a lack of fact and legal basis;
(8) Where the party who shall appear in court summoned by the court fails to appear without acceptable reasons;
(9) Where the party intentionally conceals objective facts of the case and makes a false statement, resulting in unnecessary evidence, investigation or judicial appraisal;
(10) Other proceedings which are not performed in accordance with the provisions of the law or the court order, or if the party fails to or improperly perform their litigation obligations, resulting in delays in proceedings;
(11) Refusing the mediation without good reasons. Where the party refuses the rational settlement without rational reasons or refuse to cooperate in mediation and require the other party to pay the attorney fees, the court shall not support it. If the concerned party proposes the specific mediation settlement and the opposing party refuse, and if the judgment made by this court does not exceed the amount of the settlement or mediation plan, the party is liable to hold that the opposing party accountable for the attorney fees after the receipt of the settlement or mediation plan.
17.2.3. Other circumstances. Where the plaintiff's prosecution is clearly without factual and legal basis and the defendant hire an attorney to respond, if the plaintiff withdraws the prosecution, the court shall support the defendant to counterclaim the loss of attorney's fees. In circumstances where other cases of withdrawal or rulings have been dismissed, the presiding judge shall examine whether the plaintiff has any fault in the loss of attorney's fees to the defendant, and shall handle the matter appropriately. In addition, the losing party shall bear the attorney costs in the following circumstances:
(1) Where both parties stipulate in the contract that the defaulting party shall compensate the other party for the loss of the attorney's fees, and the party sue by entrusting the lawyer to recover or reduce the losses caused by the defaulting party;
(2) Where the creditor of a contractual dispute entrusts the lawyer to exercise the right of revocation; where the creditors who guarantee the contractual dispute to sue for the realization of the claims;
(3) Where the case involves copyright, trademark disputes or other intellectual property cases, and in order to stop infringement, the concerned party must pay reasonable expenses to commission an attorney to investigate and collect evidence of infringement;
(4) Other cases of which the fees are deemed to be borne by the losing party after the trial by the court.
Notice of exceptions: special procedure, supervision procedure, public summons procedure and small claim procedure shall not be confined to the provisions of the attorney expenses for the losing party.
17.3. Please Apply in Accordance with the Following Ways
17.3.1. Initialization. You can file a claim to the court for the attorney costs which are charged to the losing party before the prosecution, counterclaim, or the end of court debate. If you make a request in the preceding paragraph, you should also provide the court with reasonable or necessary written evidence to pay for attorney's fees and related expenses.
17.3.2.Ways of request. If your claim is wholly or partially supported by the Court, you may request the other party to bear the corresponding attorney's fee in proportion to the loss. If you do not make a claim, you can file a counterclaim before the legal time limit for the attorney fees, or you may start a separate action which shall be handled by the court as a separate case.
17.3.3. Examining attorney fees. If the attorney fees agreed between the winning party and the attorney exceeds or violates the relevant provisions of the State, the court shall not support the excess or the violation in accordance with the provisions. When the attorney fees are examined to determine whether it is reasonable or necessary, the court should consider factors such as the contract, the complexity, the amount in dispute, the proportion of success, the attorney’s qualification, actual working time, the expenses, the litigation behavior and other factors.
17.4. Fee-shifting of Various Cases in Different Circumstances
17.4.1. Summary procedure cases. In cases where summary procedure are applicable, the court will only support the attorney fees for one litigation representative.
17.4.2. Counter case. If the defendant has filed a counterclaim, the court shall in accordance with the litigation claim, comprehensively handle the costs of the counterclaim.
17.4.3.Acceptance and disclaimer of the losing party. During the trial, if the losing party acknowledges the other party's claim and can provide sufficient evidence that the dispute can be settled without the lawsuit, the losing party will not bear the lawyer's fees after the acceptance of other party's claim.
17.4.4.The responsibility of the losing party in the case of joint action. When the losing party consisted of two or more person, the cost of the attorneyof the winning party shall be shared equally or according to their respective responsibilities. Where the loss is jointly or severally liable, the losing party shall bear joint liability for the attorney fees of the party in force.
17.4.5. The determination of the liability of the third party with an independent claim. If the third party with an independent claim takes the initiative to participate in the suit and win all cases in full, both parties of the original shall bear the attorney fees of the third party who has the right of an independent claim. If the third party with an independent claim completely loses, the third party shall bear the increased attorney fees of the original defendant and the defendant for his participation in the lawsuit, and the losing party shall jointly bear the attorney fees in the case of the winning party. The third party with an independent claim consisting of no less than two people shall jointly bear the attorney fees.
17.4.6. Mixed responsibility of the third party with an independent claim. If the third party with an independent claim wins the lawsuit in part, the third party shall share the attorney fees equally with the losing party or the plaintiff and the defendant's in accordance with the support and dismissal of the litigation claims of the parties.
17.4.7. The determination of the liability of the third party with an independent claim. The third party without independent claims is sentenced to bear civil liability by the court will share the attorney fees of the winning party with the losing party.
